Columbia Savings & Loan Ass'n v. Clause, 78 P. 708

Columbia Savings & Loan Ass'n v. Clause

78 P. 708 | Wyo. | 1904

Potter, Justice.

In the District Court a demurrer to the second amended petition was sustained, and leave given to file another amended petition. The third amended petition was filed within the time allowed and was stricken from the files on motion of defendant on the ground that it did not differ in substance and effect from the preceding • petition, and did not cure the objection to that petition. Thereupon judgment for defendant was rendered on the demurrer, the action was dismissed and defendant awarded his costs. Alleging error *173in each of said orders, the plaintiff brings the case to this court for review.

If the demurrer was properly sustained, it was not error to strike the third amended petition from the files. The appropriate remedy where an amended petition does not differ in substance or effect from the preceding petition, which has been held bad on demurrer, is to have it stricken from the files.

The suit was brought against an administrator upon a claim for money against the estate of the decedent, and the petition alleged that the claim had been duly presented to the administrator as provided by law and rejected by him April 13, 1901. The second amended petition was filed June 26, 1902, and the demurrer raised the objection that the said petition was not filed nor the action commenced within three months after the rejection of the claim, 'as required by Section 4753, Revised Statutes, and the ground of demurrer ivas also specified that the petition does not state facts sufficient to constitute a cause of action; but, independently of the statute of limitations, there seems to be no contention that the allegations fail to state a cause of action.

Where it affirmatively appears on the face of the petition that the statutory period for bringing the action had elapsed before the action was commenced, the objection may be raised b) demurrer on the general ground that the petition fails to state facts sufficient to constitute a cause of action. (Cowhick v. Shingle, 5 Wyo., 87; Marks v. Board of Commissioners, 11 Wyo., 488; Bonifield v. Price, 1 Wyo., 172.) It is not necessary for the petition to negative the bar of the statute, unless, prima facie, on the facts alleged, the action would appear to be barred‘unless brought within some exception, and then to avoid a demurrer it would be necessary to allege the exception deemed sufficient to take the case out of the statute, or to prevent its running. But to be reached by demurrer the bar must affirmatively appear on the face of the petition. Otherwise, the objection must be taken by answer.

*174A demurrer in any case reaches those objections only that are apparent on the face of the petition. That is the rule of code procedure generally, and is expressly so declared by our statute.' (Rev. Stat., Sec. 3535; 1 Abbott’s Tr. Brief on Pleadings, 14; 6 Ency. PI. & Pr., 297; Bliss Code PL, Sec. 404.) That is likewise the general rule at common law. (1 Chitty PL, 692.) Though, under the practice at common law where plaintiff declares upon a written instrument and-states the same but partially, the defendant may crave oyer of the instrument and set forth the whole of it, thereb)r making it a part of the declaration, and then demur; and that practice is followed in some states. (1 Chitty’s PL, 697; Matthewson v. Grand Rapids, 88 Mich., 858 (26 Am. St., 299.) We are aware of no such exception under the code in the absence of a specific provision for it. Generally, a demurrer founded on matter collateral to the pleading against which it is directed is called a “speaking demurrer,” and is held bad. (6 Ency. PL & Pr., 298; Rucldick v. Marshall, 23 la., 243.)

The amended petition to which the demurrer was sustained alleged the date of the rejection by the administrator of the claim sued on, but did not show when the action was commenced. Unless a new cause of action be introduced, or a new party brought in, an amended petition, in respect to the statute of limitations, relates back to the commencement of the action. It is perhaps permissible on the demurrer to go back to the original petition to ascertain from the official endorsement thereon when it was filed. If that be done here, it will be discovered that it was filed July 2, 1901, which was within the statutory period of three months after the claim had been rejected. But the arguments of counsel have taken a much wider range. It seems that the summons issued on the original petition was subsequently quashed on the ground that it had been directed to and served by an unauthorized officer; and a second summons was issued November 8, 1901, and served on defendant, and that a new summons was issued and served upon the filing *175of each amended petition. It is contended on the one hand that the action was not commenced when the original petition was filed on the ground that the summons issued thereon and the service thereof was void; and, on the other hand, it is urged that the proceedings were sufficient to commence the action within the meaning and operation of the statute authorizing a new action within one year after the failure of plaintiff otherwise than on the merits. (R. S-, Sec. 3465.) This would'present an interesting question upon an issue properly raised, but a consideration of the facts involved is clearly beyond the scope of the demurrer.

In none of the cases in this court upon an issue of the statute of limitations raised by demurrer does it appear that the question was decided upon anything outside the petition itself. When the pleading objected to is an original petition the date of its filing represents the earliest time at which the action can he deemed commenced, since a summons does not issue until the filing of a petition. Therefore, if such a petition allege the time when the cause of action accrued, and there is no allegation sufficient to avoid the bar, and the statute appears to have run before the filing of the petition, the latter will show affirmatively that the action is barred. In the case in hand, even by resorting to the original petition, there is no such affirmative showing. The proceedings relative to the summons do not appear on the face of the petition, and while the facts would be entirely competent on an issue raised by answer, their relevancy on demurrer is not perceived.

By the great weight of authority, it is not competent to look to facts appearing by the process, return of service, or other parts of the record not forming a part of the pleadings, to sustain a demurrer to a petition; and it is not permissible on demurrer to look outside the petition to the process to ascertain when the action was commenced. (Abbott’s Tr. Br. on PL, 18; Brooks v. Metropolitan Life Ins. Co. (N. J.), 56 Atl., 168; Huss v. Central R. & Banking Co., 66 Ala., 472; Nybladh v. Herterius, 41 Fed., 120; *176Smith v. Day, 39 Oreg., 531 (65 Pac., 1055); Smith v. Holmes, 19 N. Y., 271; Zaegel v. Kuster, 51 Wis., 31 (7 N. W., 781) ; Smith v. City of Janesville, 52 Wis., 680 (9 N. W., 789); Benedix v. Ins. Co., 78 Wis., 77 (47 N. W., 176); Anderson v. Douglas County, 98 Wis., 393; Steamboat Farmer v. McCraw, 31 Ala., 659; Hust v. Conn, 12 Ind., 257; Thames L. & T. Co. v. Beville, 100 Ind., 309; Am. Ins. Co. v. Replogel, 114 Ind., 1 (15 N. E., 810) ; Ghiradelli v. Greene, 56 Cal., 629; Kamm v. Bank of California, 15 Pac., 765 (Cal.); Polk Co. v. Hierb, 37 Ia., 361 ; Robinson v. National Stock Yard Co., 12 Fed., 361; Ruddick v. Marshall, 23 la., 243; Miller v. Miller, 63 Ia., 387; Maynard v. Talcott, 2 Barb., 569; Owen v. Waters, 2 M. & W., 91; Swann v. Phœnix I. & C. Co., 58 Ga., 199; and see State v. Simpkins, 77 Ia., 676; Osborn v. Portsmouth Nat’l. Bank, 61 O. St., 427.)

In West Virginia it seems that oyer may be craved of the writ and thus make it a part of the record to be considered with the declaration, so that a demurrer would in effect say that the facts as they appear by the writ and declaration are not sufficient in law; and the writ may then be looked to in order to show when the action was commenced. (Lambert v. Ensign Mfg. Co., 42 W. Va., 813.) And in a case in the United States Circuit Court for the District of Oregon, it was held, citing the West AVrginia case, supra, that on demurrer, in order to determine the date of the commencement of the action with reference to the statute of limitations, it is necessary to go to the summons, and that the writ and complaint must be read together, and what the writ shows will be deemed to appear on the face of the complaint. (Patterson v. Thompson, 90 Fed., 647.) No other case has come to our attention where that view has been taken.

In the early case of Bonnifield v. Price, 1 Wyo., 172, suit was brought upon a foreign judgment, and a special demurrer was interposed on the ground “that the cause of action did not-accrue within five years prior to the filing of *177the petition.” The court said: “Where from the face of the petition it is apparent, without any further showing, th'at the statute of limitation has commenced to run, a defendant may take advantage of the same by a special demurrer. In this case, upon the decision of the demurrer, there was no legal evidence whatever before the court, neither could there have been as to the provisions and effect of the statutes of California.” In the case of Anderson v. Douglas Co., supra, the Wisconsin court held that it was precluded from looking to the admission of service indorsed on the summons and complaint.

It is clearly incompetent, therefore, to take into consideration the facts concerning the process issued in the case. The defendant is not prevented from taking advantage of those facts by answer, but they are foreign to the issue presented by the demurrer. The same principle precludes consideration of the point urged, that the issuance of a new summons with the amended petition amounted to a practical abandonment of the original suit.

Tf, as suggested, the second amended petition was filed without leave, the defendant, had he desired to raise, that question, might have moved to strike it from the files. That is not the office of a demurrer.

Again, it is urged that the action should be deemed commenced at the date of the filing of the amended petition demurred to, because it states a new cause of action. It may he doubtful whether that point is properly raised by the demurrer; but, waiving a consideration of that question, we think it reasonably clear that the point is not well taken. It is possible that as to a part of the amount claimed recovery is first sought in the amended petition. It seems that the amount claimed to he due is computed up to a date one month later than in the original petition; but in all the petitions recover)^ is sought on the same obligation. The same written instrument, the same consideration, the same ■ stipulations, and the same default, are alleged. This is a suit upon a claim against the estate of a decedent, and in *178such case it is held that recovery can be had only on the claim as presented to and rejected by the administrator. (Brooks v. Rawson, 68 Pac., 97 (Cal.); Lichtenburg v. McGlynn, 105 Cal., 45 (38 Pac., 541); McGrath v. Carrail, 42 Pac., 466 (Cal.) The particular manner of presenting the claim is not alleged, nor does the petition show how the claim was described in the document presented to the administrator. It is averred generally that the claim sued on was duly presented to the administrator as provided by law. The fact that'the prayer of the original petition asked for foreclosure of a trust deed given to secure the debt, and that such relief is not included in the prayer to the amended petition does not amount to the statement of a new cause of action. The original petition also prayed for judgment for the amount claimed; and did not waive recourse against the property of the estate. Hence it did not authorize a foreclosure.

For the reasons above stated, the court erred in sustaining the demurrer and rendering judgment thereon. The judgment will, therefore, be reversed and vacated, and the cause remanded to the District Court with directions to vacate the order sustaining the demurrer, and enter an order overruling it, and for further proceedings. Reversed.

Corn, C. J., concurs.